Good Faith Matters? English Contract law tradition compared to the directions of EU Private Law

An article provides a comprehensive analysis of the definition and judicial application of the Contract Law principle of the good faith by English national courts and researches how this principle is interpreted on the supranational level of the EU law. Comparative legal method allows to depict two different positions. On the one side, it is English approach, which tends to disregard the principle of good faith both in statutory provisions and judicial decrees. On the other side, the latest legal provisions on the harmonisation of the EU Private Law univocally define the principle of the good faith as the fundamental principle of the Contract Law system. However, the analysis of legal practice presents controversial conclusions. In fact, English Courts employ the principle of good faith frequently, elaborating different forms of exceptions to general rule of non-recognition complemented by the detailed and strict legal tests. Such approach prevents legal uncertainty and effectively transforms a very abstract notion into the applicable legal rule. On the EU level, the provisions of the DCFR and PECL although recognise the good faith as the core principle, in fact, leave it extremely vague and incapable of guiding judges’ reasoning. The article defines good faith as an open norm and suggests that an attempt to research good faith as a self-explanatory legal doctrine is doomed until we start to discover new recognisable forms of its application.